EMETUMA & ORS v. NWAGWU & ORS
(2022)LCN/16342(CA)
In The Supreme Court
On Friday, January 28, 2022
SC.423/2012
Before Our Lordships:
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Between
1. ALHAJI GAFARI EMETUMA 2. ALHAJI RASAKI NWABINWE 3. BENSON NNADI 4. JOSEPH IHUARO ORUMEZIE (For Themselves And On Behalf Of Umuofor Akabor) APPELANT(S)
And
1. ALBANUS NWAGWU 2. SUNDAY UBA 3. CHIEF AKUBUO OSUOHA 4. NZE NWAWUAKU EZIKEURE 5. ALPHONSUS ONYEJIAWA (For Themselves And On Behalf Of Umuemem Akabor). RESPONDENT(S)
RATIO:
DISTINCTION BETWEEN A GROUND OF LAW, FROM A GROUND OF MIXED LAW AND FACT OR GROUND OF FACT SIMPLICITER
The Court has an onerous duty to thoroughly examine the grounds of appeal to see whether or not the grounds reveal a misunderstanding by the lower Court or Tribunal, or a misapplication of the law to the facts already admitted or proved. Whichever case, it would simply be a question of law. Where the ground is one that would require questioning the evaluation of facts by the lower Court prior to applying the law, in which case it would amount to a question of mixed law and fact. However, where the ground of appeal questions the finding made by the Court below, then the question is on fact. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
WHETHER LEAVE OF COURT IS OUGHT TO BE GRANTED BEFORE FILING THE NOTICE OF APPEAL ON EITHER GROUND OF MIXED LAW OR FACT
Invariably, in both grounds of mixed law and fact, and on facts simpliciter, the leave of the Court is imperative, thus ought to be applied for and granted before filing the notice of appeal. See JB OGBECHIE VS. ONOCHIE (1986) (supra), GLOBAL WEST, VESSEL SPECIALIST (NIG) LTD VS. NIGERIA, (NIG) LTD (2017) LPELR. SC 544/2014 at 27-28. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
DISTINCTION BETWEEN A GROUND OF LAW, FROM A GROUND OF MIXED LAW AND FACT OR GROUND OF FACT SIMPLICITER
A ground of law, as distinguished from a ground of mixed law and fact and a ground of fact simpliciter, arises where the ground of appeal clearly shows that the Court of trial or appellate Court below (as the case may be) misunderstood the law to the proved or admitted facts. Undoubtedly, where the substance of a ground of appeal reveals a misapplication of law to facts proved or admitted at the trial Court, the said ground ought to be deemed to be a ground of law and not of mixed law and fact or a ground of fact simpliciter. See OGBECHIE VS. ONOCHIE (supra). IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
POSITION OF LAW IN DETERMINING WHEN A GROUND OF APPEAL IS MIXED LAW AND FACTS, OR FACTS SIMPLICITER
It is trite law, that in the determination of whether or not a ground of appeal is mixed law and facts, or facts simpliciter, the ground of appeal, as well as the particulars thereof, must be considered together. See ABUBAKAR VS WAZIRI (2008) LPELR-54 (SC) 41/2005, per Niki Tobi, JSC at 22. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
POSITION OF LAW IN DETERMINING THE GROUND OF MIXED LAW AND FACTS
When the facts are in dispute between the respective parties, the conclusion drawn from the application of the law to such disputed facts are characteristically classified as those of mixed law and facts. Thus, the ground of appeal challenging such conclusions, as in ground of the notice of appeal are grounds of mixed law and facts. See AJAYI VS. OMOROGBE (1993) LPELR – SC265/1989 per Kariby-Whyte, JSC at 23 paragraphs F-G. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
NOTICE OF APPEAL IN A CIVIL MATTER AND A CRIMINAL MATTER
This Court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is unreasonable or cannot be supported having regard to the evidence. See Federal Act, 1960, Section 26 (1), and the Federal Supreme Court Rules, 1961, Order VII, Rule 2…. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
POSITION OF LAW ON THE OMNIBUS GROUND OF APPEAL
What’s more, in the case of ANACHUNA ANYAOKE VS. FELIX C. ADI (1986) 3 N WLR 731, this Court aptly explained the nature and scope of the omnibus ground thus:
“It is true that an omnibus ground of appeal implies that the judgment of trial Court cannot be supported by the weight of the evidence adduced by the successful party, which the trial Judge either wrongly accepted or that inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if accepted would support the findings of the trial Judge, further implication of the omnibus ground is that when the evidence adduced by the appellant is weighed against the totality of the evidence adduced before the trial Court.” See Chief Abah Ogboda V. Daniel Adulugba (1971) 1 AUNLR 68 at P. 71, Mba Nta & Ors V. Nwede Anigbo & ORS (1972) 1 AllNLR (pt. 2) 74 at 80 and Magaji & ors v. Odofin & ors (1978) 4, SC ’91 at P. 3. Per Uwais, JSC (as he then was) at 742. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal has emanated from the judgment of the Court of Appeal, Port Harcourt Judicial Division, delivered on March 12, 2012 in appeal no. CA/PH/3/97. By the judgment in question, the Court below, coram U. M. Abba-Aji, JCA (as then was), M. A. Owoade and H.M. Tsammani, JJCA, affirmed the judgment of the trial High Court, delivered on March 27, 1996 (pages 107-127 of the Record of Appeal), in favour of the Respondents (plaintiffs).
BACKGROUND FACTS
The instant case has had a chequered historical background. It was instituted vide a writ of summons 39 years ago (14/10/1982) by the Respondents (plaintiffs) against the Appellants (Defendants), in a representative capacity.
By the amended claim thereof (filed with leave of Court granted on 02/05/1 991), the Respondents claimed against the Appellants the following reliefs:
(a) A declaration that the plaintiffs are entitled to the customary right of occupancy over that piece of parcel of land known as and called Uzoumuemen which situate (sic) at Umemem village in Akabor. Ohaji/Egbema/Oguta L.G.A. of Imo State. Within the jurisdiction of this Honourable Court
(b) N10,000.00 (ten thousand naira) being general damages for trespass in that in August 1982, and on diverse subsequent dates, the defendants without the leave or licence of the plaintiffs in very large number broke and entered Uzoumuemem farmland in the possession of the plaintiffs, destroyed our crops and trees etc.
(c) Perpetual injunction restraining the defendants, by themselves through their servants and/or agents of otherwise from committing further acts of trespass on the aforesaid Uzoumuemem farmland or in any other way interfering with the plaintiffs’ possession and use of the said land as delineated in plan No. VLD.61/83 OF 5/4/33.
Contrariwise, the Appellants by the amended statement of defence thereof (filed on 01/11/1985), denied the Respondent’s claim in toto. The suit went through an excruciatingly protracted trial. At the end of which, the trial High Court delivered the vexed judgment to the conclusive effect:
Having gone thus far and taking into consideration the evidence led and evaluated as well as the respective decisions on the issues settled, I have come to the conclusion that the plaintiffs have made out a case which should entitle them to the reliefs sought. The judgment of this Court therefore is that the claim of the plaintiffs are entitled to judgment…
See pages 107 – 127 (most especially at 127) of the Record of Appeal.
Not unexpectedly, the Appellants were utterly dissatisfied with the judgment of the trial High Court, thus appealed to the Court below.
On 12/03/2012, the Court below delivered the judgment thereof to the conclusive effect:
I have considered the submissions of learned counsel and I am of the firm view that the learned trial Judge dispassionately considered and properly evaluated the evidence of witnesses adduced before him before coming to the conclusion that the land in dispute Akasor was partitioned amongst his children and that the Umuemem land which was the share of Emem and shared amongst his five Kindreds for farming purposes as communal land and the customary owners of all that piece or parcel of land verged green in EXHIBIT ‘A.’
…
In the circumstances, having resolved all the issues against the Appellants, the appeal fails as it is devoid of any merit. It is accordingly dismissed. I assessed the costs of this suit at N30,000.00 only in favour of the Respondents.
As alluded heretofore, the instant appeal is against the said judgment of the Court below.
On November 2, 2021 when this appeal at long last came up for hearing, the learned counsel were accorded every opportunity to address the Court and adopt the argument contained in their respective briefs of argument, thereby warranting this Court to reserve judgment to today.
The Appellant’s amended brief, filed on July 6, 2018, spans a total of 37 pages. At page 3 thereof, a total of 7 issues have been couched:
(i) Was the action properly constituted as a representative action on behalf of Umueme Akabro – Ground 1.
(ii) Were the Respondents entitled to judgment on the basis of the evidence led in proof of their root of title – Ground 2.
(iii) Was the Court below right to have treated the DW3 as an unreliable witness – Ground 3.
(iv) Did the Appellants receive a fair hearing – Ground 4.
(v) Did the Respondents prove exclusive possession of the land in dispute – Ground 5.
(vi) Was the Court below correct to have limited the Appellants to an area less than the land subject matter of HOW/78/63 which terminated in their favour. Ground 6.
(vii) Is the judgment of the Court consistent with the weight of evidence. Ground 7.
The issue no. 1 is argued at pages 4-9 of the said brief. In the main, it is submitted that the decisions of the two Courts below are perverse and should be set aside. That the findings of the two Courts are patently erroneous and a miscarriage of justice has been occasioned, therefore ought to be set aside by this Court. See SOLOMON VS. MOGAJI (1982) 11 P. L. ENANG VS. ADU (1981) 11-12 SC. 25; KALE VS. COKER (1982) 12 SC 252; OMOBORIOWO VS. AJASIN (1984), SCNLR 108.
Conclusively posited, that on the evidence on record, the conclusion of both Courts below cannot be sustained as the interest of each kindred was limited to its own share of the land. As such, the action on behalf of Umuemem village was incompetent and the Court below was bound by the decision of OFIA VS. EJEM (2006) 5 SCNJ 188.
The issue no. 2 is extensively argued at pages 9-21 of the brief. In a nutshell, it is submitted that whichever way the Respondents’ (plaintiffs’) traditional history was looked at, it’s replete with contradictions with the pleading inconsistencies, yawnino craps and mysterious linkages unexplained by the evidence. See EZE VS. ATASIE (2000) 10 NWLR (pt: 676) 470 per Uwaifo, JSC, et al.
Further submitted, that the failure of the Court below to properly scrutinize the pleadings and the evidence led by the Respondents in proof of their traditional history occasioned a miscarriage of justice. Thus, the decision of the Court below is unsupportable, and should be set aside.
The issue no. 3 is argued at pages 21-24 of the brief, to the effect that the Court below made pronouncement on the Appellants’ extrajudicial statement as erroneously held by the trial Court. That this is a straight issue of law which ought to have been resolved one way or the other by the Court below. To refuse to do so was most unfair to the Appellants, who had a right to have their case fully considered. Thus, the Court below had caused a miscarriage of justice. The Court is urged to so hold.
The issue no. 4 is argued at pages 24-27 of the brief, to the conclusive effect that the Court below failed to appreciate that it was the Court which made the order recalling the witness and not the Appellants, that had a duty to ensure that the order of the Court was not subverted, hence its erroneous conclusion.
The Court is urged to hold, that the Court below should not have acted on the evidence of pw2 who was blatantly disrespectful to the order of the trial Court. Thus, the extensive use of the evidence of the witness was in violation of the Applicants’ right to fair hearing. The Court is urged to so hold.
The issue no. 5 is argued at pages 27-30 of the brief, to the conclusive effect that failure to prove exclusive possession was fatal to the Respondents’ claim for declaration.
The issue no. 6 is argued at pages 30-33 of the brief, to the effect that the Court below failed to observe that by Exhibit A, the Respondents appropriated part of the land in dispute bounded by the land of Umu-Nwaocha Akabor and part of the land on which Umuofor Akabor school was situated, which was admittedly Appellants’ land.
The Court is urged to so hold and resolve issue 6 in Appellants’ favour.
Lastly, but not the least, the issue No. 7 is argued at pages 33-34 of the brief, to the effect that the Court wrongly appraised Exhibits A, J and H and came to a wrong decision thereby. The perfunctory consideration of the evidence (Exhibit H at page 3) led to a miscarriage of justice in the circumstances. The Court is urged to resolve issue 7 in the Appellants’ favour.
Conclusively, the Court is urged upon to allow the appeal.
Contrariwise, the Respondents’ brief, settled by Chief EO Onyema on 07/7/2015, spans a total of 22 pages. At page 4 of the said brief, seven issues have been distilled from the seven grounds of the notice of appeal:
(a) Whether the learned Justices of the Court of Appeal were right in affirming the decision of the trial Court that this suit was properly constituted as an action in a representative capacity?
(b) Whether the lower Court was right in affirming the decision of the trial Court that the Respondents duly established the traditional history which they put forward in proof of their title to the land in dispute?
(c) Whether the learned Justices of the Court of Appeal were right in affirming the decision of the trial Court that the D W3 was an unreliable witness?
(d) Whether the learned Justices of the Court of Appeal were right in holding that the Appellants’ right to fair hearing was not breached by the fact that a witness who was recalled for cross-examination failed to appear in Court for that purpose?
(e) Whether the learned Justices of the Court of Appeal were right in affirming the decision of the trial Court that the Respondents established exclusive possession of the land in dispute?
(f) Whether the learned Justice of the Court of Appeal were right in holding that the judgment of the trial Court did not in any way diminish the rights of the Appellants over the “Nwaoduke” land subject matter of Suit No. HOW/78/63?
(g) Whether the judgment of the lower Court is consistent with the preponderance of evidence on record?
The issue no. 1 is argued at pages 4-8 of the Respondents’ brief, to the effect that it’s clear from the amended statement of claim (paragraph 1) at pages 15-20 of the Record, that the Respondents have duly proved by evidence that the members of Umuemem community on whose behalf the action was prosecuted by the Respondents on the record, have a common interest in the land in dispute, suffered a common grievance by reason of the Appellants’ trespass in to the land. And that the reliefs claimed are beneficial to all the members of the community. Further submitted, that the findings and conclusions of the trial Court on the pleadings and evidence that the Respondents were competent to file the action in a representative capacity have been affirmed by the Court below. The Appellants have not established any ground to warrant this Court to reverse those concurrent findings. see MBANEFO VS. MOLOKWU (2014) 232 LRCN 1 at 40.
The Court is urged to so hold, resolve issue no. 1 in the affirmative and dismiss ground 1 of the Notice of Appeal.
The issue no.2 is argued at pages 8-11 of the brief, to the conclusive effect that upon the evidence on record, the Respondents have duly proved their title to the land in dispute by evidence of traditional history, and the Court below was justified in affirming the judgment of the trial Court in entering judgment in favour thereof.
The Court is urged to so hold, and resolve the issue 2 in the affirmative.
The issue no. 3 is urged at pages 11-12 of the brief, to the conclusive effect, that the Court below was right in its decision in the light of the circumstances and facts of the case on record, and that the Appellants have not shown any grounds to disturb the concurrent findings of the two Courts below.
The Court is urged to resolve issue no. 3 in the affirmative.
The issue no. 4 is argued al pages 13-14 of the brief, to the conclusive effect that the Court below was right when it held (pages 237- 238 of the Record), that the trial Court did not, in any way, breach the Appellants’ right to fair hearing. The Court is urged to resolve issue 4 in the affirmative.
The issue no. 5 was argued al pages 14-16 of the brief, to the conclusive effect that the Court below was right in affirming the decision of the trial Court that the Respondent proved exclusive possession of the land in dispute. The Court is urged 10 so hold.
The issue no. 6 is argued at pages 16-17 of the brief, to the conclusive effect that the judgment of the trial Court which was affirmed by the Court below, did not in any way diminish the Appellants’ rights over the “Nwaoduke” land. The Court is urged to so hold. Lastly, but not the least, the issue no.7 is argued at pages 18-19 of the said brief, to the conclusive effect that the Appellants have not shown any reason why this Court should disturb the concurrent findings made in this case by the two Courts below. The Court is urged to so hold.
Conclusively, the Court is urged upon to dismiss the appeal in its entirety for lacking in merits.
I have critically albeit dispassionately considered the circumstances surrounding the instant appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof vis-a-vis the record of appeal, as a whole.
The notice of appeal is contained at pages 249 of the record of appeal. As alluded to above, the notice of appeal is predicated upon a total of seven grounds.
By the reliefs being sought by the Appellants, the Court is urged upon:
“To allow the appeal, set aside the judgment of the lower Court and dismiss the case of the plaintiffs/Respondents.”
Unfortunately for the Appellants, however, having critically albeit dispassionately perused the notice of appeal, there is every cogent reason for me to appreciate the fact that virtually each of the seven grounds upon which the notice of appeal is predicated raises an issue of mixed law and fact or fact simpliciter, thereby rendering the notice of appeal utterly incompetent on ground of Appellants’ failure to seek and obtain the leave of the Court prior to filing same. Thus, the appeal shall be liable to be struck out for incompetence.
Instructively, more often than not, the Courts have faced some difficulty in distinguishing a ground of law, from a ground of mixed law and fact or ground of fact simpliciter. See OGBECHIE VS. ONOCHIE (1986) 1 NWLR (pt. 70) 370, wherein this Court per Eso, JSC: UBA VS. STAHIBAU GMBH & CO. (1989) 3 NWLR (pt. 110) 374 at 391-392; OBATO YINBO VS. OSHATOBA (1996) 5 NWLR (pt. 450) 531 at 548.
The Court has an onerous duty to thoroughly examine the grounds of appeal to see whether or not the grounds reveal a misunderstanding by the lower Court or Tribunal, or a misapplication of the law to the facts already admitted or proved. Whichever case, it would simply be a question of law. Where the ground is one that would require questioning the evaluation of facts by the lower Court prior to applying the law, in which case it would amount to a question of mixed law and fact. However, where the ground of appeal questions the finding made by the Court below, then the question is on fact. Invariably, in both grounds of mixed law and fact, and on facts simpliciter, the leave of the Court is imperative, thus ought to be applied for and granted before filing the notice of appeal. See JB OGBECHIE VS. ONOCHIE (1986) (supra), GLOBAL WEST, VESSEL SPECIALIST (NIG) LTD VS. NIGERIA, (NIG) LTD (2017) LPELR. SC 544/2014 at 27-28.
A ground of law, as distinguished from a ground of mixed law and fact and a ground of fact simpliciter, arises where the ground of appeal clearly shows that the Court of trial or appellate Court below (as the case may be) misunderstood the law to the proved or admitted facts. Undoubtedly, where the substance of a ground of appeal reveals a misapplication of law to facts proved or admitted at the trial Court, the said ground ought to be deemed to be a ground of law and not of mixed law and fact or a ground of fact simpliciter. See OGBECHIE VS. ONOCHIE (supra).
It is trite law, that in the determination of whether or not a ground of appeal is mixed law and facts, or facts simpliciter, the ground of appeal, as well as the particulars thereof, must be considered together. See ABUBAKAR VS WAZIRI (2008) LPELR-54 (SC) 41/2005, per Niki Tobi, JSC at 22.
In the circumstance, I have deemed it expedient to consider each of the seven grounds of the Amended Notice of Appeal (deemed properly filed on 02/11/2021) along with the particulars thereof, anon.
GROUND ONE
The learned justice of the Court below erred in their conclusion that the action before the trial Court was properly constituted as a representative action on behalf of Umuemem village Akabo.
PARTICULARS OF ERROR
(i). There was evidence by the PW1 that the action was brought on behalf of Umuololo Kindred as distinct from Umuemem village.
(ii). There was evidence by the same PW 1 that;
In Umuemem, all lands are communally owned by the various kindreds already named. The land of Umuemem has long been shared amongst the kindreds already named. The land of Umuemem has long been shared amongst the kindreds already named
(iii) There was equally evidence of PW3 that the land was owned in families and there was no evidence that there was allotment of portions of the land in dispute to the different kindreds for farming purposes only as erroneously held by the trial Court and confirmed by the Court below.
(iv) On the evidence on record, the conclusion of both Courts below cannot be sustained as the interest of each kindred was limited to its own share of the land and as such the action on behalf of Umuemem Village was incompetent and the Court below was bound by the decision in OFIA & ORS VS. EJEM (2006) 5 SCNJP188 cited by the Appellants.
When the facts are in dispute between the respective parties, the conclusion drawn from the application of the law to such disputed facts are characteristically classified as those of mixed law and facts. Thus, the ground of appeal challenging such conclusions, as in ground of the notice of appeal are grounds of mixed law and facts. See AJAYI VS. OMOROGBE (1993) LPELR – SC265/1989 per Kariby-Whyte, JSC at 23 paragraphs F-G.
In the instant case, it is so obvious that ground I vis-a-vis the particulars thereof complain of the manner in which the lower Court evaluated the facts prior to applying the law, thereby raising a question of mixed law and facts.
In the circumstance, the said ground 1 of the notice of appeal is devoid of competence for having been filed with out leave of the Court.
GROUND TWO
The Court below erred in its conclusion that the Respondents established their traditional history in the manner prescribed by law.
PARTICULARS OF ERROR
(i) The Respondent did not lead cogent, credible and convincing evidence of how the land in dispute devolved from their ancestors to themselves as there existed mysterious linkages which destroyed the traditional history relied upon.
(ii) The Appellants had no counter-claim and the failure of their traditional history did not tantamount to proof of the Respondents’ title as erroneously held by the Court below.
(iii) Acts of possession relied upon by the Court below were completely irrelevant for the purpose of determining the proof vel-none of the Respondents’ traditional history.
(iv) the failure of the Court below to properly scrutinize the pleadings and the evidence led by the Respondents in proof of their traditional history occasioned a miscarriage of justice.
Essentially, ground 2 questions the evaluation of evidence adduced at the trial of the suit. Undoubtedly, it is of mixed law and facts.
GROUND THREE
The learned trial Judge erred in law in affirming the finding ‘that the DW3 was unreliable witness.
PARTICULARS OF ERROR
(i) The basis upon which the finding of the Court of trial was made was that the witness’ extra-judicial statement, the amended statement of claim, conflicted with his evidence in Court which contention is specious and untenable.
(ii) The basis upon which the Court below affirmed the finding is not that relied upon by the Court of trial and the Respondents did not file a Respondents notice of affirm the decision on a ground other than that relied upon by the trial Court.
(iii) There were nothing in the evidence of the DW3 which justified the finding that he was an unreliable witness.
The ground no. 3 equally questions the evaluation of evidence adduced by the respective parties at the trial. It is of mixed law and fact.
GROUND FOUR
The learned Justices of the Court below erred in law in their conclusion that the use to which the trial judge put the evidence of PW2 who refused to comply with the order of Court recalling him for cross-examination did not vitiate the Appellants right to a fair-hearing.
PARTICULARS OF ERROR
(i) The Court and the parties were bound by the order recalling the plaintiffs’ witnesses for cross-examination.
(ii) The appellants had a right to cross-examine the witnesses based upon the order of the Court recalling them for cross-examination.
(iii) The refusal of PW2 to comply with the order recalling him and the subsequent use of his testimony by the trial Court rendered the trial unfair and unconstitutional as the Court could not use such evidence against the Appellants.
(iv) The Appellants could not be visited with the sins of their counsel who according to the Court below “slowly took his step” neither could they be affected by what took place before the order recalling the witnesses was made.
(v) The Court below did not appreciate that it was the Court which made the order recalling the witness and not the Appellants that had a duty to ensure that the order of Court was not subverted, hence its erroneous conclusion. The fact that ground no. 4 has been tagged by the Appellants as a ground of law does not necessarily qualify it as such. By the particulars thereof (copiously alluded to above), it’s undoubtful that ground 4 merely questions the evaluation of evidence. It’s indeed of mixed law and fact.
GROUND FIVE
The conclusion of the learned Justice of the Court below that the Respondents proved that they were in exclusive possession of the land in dispute is not borne out by the evidence on record.
PARTICULARS OF ERROR
(I) As rightly observed by the Court below
“it appears that there is no response by the Respondents on this issue”.
Consequently, the Court had no business making a case which the Respondents did not make.
(ii) Having conceded the point, the Respondents could not be the beneficiaries of the unsolicited contentions made on their behalf by the Court below.
(iii) The Court below failed to perceive that the failure to prove exclusive possession was fatal to the claim for trespass which is distinct from the claim for declaration.
Ground 5 is characteristically predicated on question of evaluation of evidence, thus raises an issue of mixed law and facts, and not law simpliciter.
GROUND SIX
The learned justices of the Court below erred in law in affirming the trial Court’s decision which had the effect of divesting the Appellants of part of the land subject matter of suit no. HOW/78/63 which was in their favour.
PARTICULARS OF ERROR
(i) Contrary to the finding of the Court below, there was clear evidence that the area verged yellow on EXHIBIT A, did not represent the area verged pink on EXHIBIT J, subject matter of the judgment EXHIBIT H.
(ii) Had the Court below properly appraised EXHIBITS A,J,H, it would have observed that the Respondents had by their EXHIBIT A, fraudulently distorted the land won by the Appellants, as that land verged pink on EXHIBIT J terminated at the point where the land of Eziama begins with the road to Eziama clearly visible on the South West of the land.
(iii) The Court below ought to have perceived that the Respondents had by their EXHIBIT A appropriated the portion verged brown thereon leading up to the road to Eziama, which from EXHIBITS H and J was that of the Appellants.
(iv) The Court below also failed to observe that by EXHIBIT A, the Respondents appropriated part of the Northern part of the land in dispute bounded by the land of Umu Nwaocha Akabor and part of the land on which Umufor Akabo School was situated which was admittedly Appellant’s land.
(v) The contention by the Court below to the effect that the Appellants admitted the Respondents’ plan, EXHIBIT A as correct since it was tendered without objection is untenable as the Appellants in paragraph 5 of their statement of defence and oral evidence categorically repudiated the said EXHIBIT A and placed reliance on their own plans EXHIBITS J and G which contradicted EXHIBIT A.
Ground 6 essentially raises the question of evaluation of evidence. It is a ground of mixed law and fact.
GROUND SEVEN
The judgment of the Court below is against the weight of evidence.
Lastly but not the least, ground 7 undoubtedly raises the question of evaluation of evidence. It cannot, by any stretch of imagination, qualify as a ground of law simpliciter. Undoubtedly, it raises the question of mixed law and facts, thus requiring leave of Court prior to being filed.
The fact that an omnibus ground of appeal fundamentally raises a question of fact had long been reiterated in a plethora of authorities by this Court. In the case of ATUYEYE VS. ASHAMU (1987) LPELR – 638 (SC), this Court was reported to have aptly held that the proper ground against the findings of fact is the omnibus ground, that the ‘judgment is against the weight of evidence.’ Indeed, the notorious phrase ‘against the weight of evidence’ usually couched in ground of appeal, is not applicable in criminal appeals; it’s exclusively applicable in civil appeals. As aptly reiterated by this Court in ATUYEYE VS. ASHAMU (supra):
In the light of Aladesuru V. The Queen, (1956) AC49, it was pointed out that the words “Weight of Evidence” are not applicable in criminal appeals. This Court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is unreasonable or cannot be supported having regard to the evidence. See Federal Act, 1960, Section 26 (1), and the Federal Supreme Court Rules, 1961, Order VII, Rule 2….
As against this approach, in civil appeals, the proper form is that the judgment is against the weight of evidence.
See Akibu V. Opaleye & Anor (1974) 11 SC. 189…
Per Coker, JSC at 11-12 paragraphs A – E. See also ALHAJI ADEBOLA OLKUNLE ELIAS VS. CHIEF TIMOTHY OMO – BARE (1982) 5 SC 25 at 31, per Sir Udo Udoma, JSC.
What’s more, in the case of ANACHUNA ANYAOKE VS. FELIX C. ADI (1986) 3 N WLR 731, this Court aptly explained the nature and scope of the omnibus ground thus:
“It is true that an omnibus ground of appeal implies that the judgment of trial Court cannot be supported by the weight of the evidence adduced by the successful party, which the trial Judge either wrongly accepted or that inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if accepted would support the findings of the trial Judge, further implication of the omnibus ground is that when the evidence adduced by the appellant is weighed against the totality of the evidence adduced before the trial Court.” See Chief Abah Ogboda V. Daniel Adulugba (1971) 1 AUNLR 68 at P. 71, Mba Nta & Ors V. Nwede Anigbo & ORS (1972) 1 AllNLR (pt. 2) 74 at 80 and Magaji & ors v. Odofin & ors (1978) 4, SC ’91 at P. 3.
Per Uwais, JSC (as he then was) at 742.
As a matter of law, the Court has the onerous duty to consider the issues or questions submitted thereto for adjudication. Where a Court fails to consider and adjudicate thereupon those issues or questions, it is usually an error of law, that is so because the omission constitutes a denial to the party aggrieved by the alleged breach of fair hearing, as cherishingly enshrined in Section 36 of the 1999 Constitution, as amended.
However, as the ground (complaint) is an invitation to the appellate Court to appraise those matters of fact which the Court below failed or declined to consider, it inexorably becomes an issue of mixed law and fact, or fact simpliciter. In the instant appeal, the Appellant in grounds of the notice of appeal extends an invitation to this Court to appraise those questions of fact the Court below allegedly declined to consider. This is even more so, in view of the reliefs sought by the Appellants copiously alluded to above. See OPUIYO VS. OMONIWARI (2007) 6 SC (pt.1) 38 at 47-48 lines 5 – 30; NNPC VS. FAMFA OIL LTD (2012) LPELR SC.71/2008; AJUWA VS. SPDC (2011) 12 SC (pt. IV) 118; OGBECHIE VS. ONOCHE (supra); NWADIKE VS. IBEKWE (1987) 4 NWLR (pt.67) 718.
In OGBECHIE VS. ONOCHIE (supra), this Court adopted with approval the propositions by the eminent authors of the Law Quarterly Review Volume 100 of 1984:
“If the Tribunal (Court) purports to find that particular events occurred although it is seized of no admissible evidence that the events did in fact occur, it is a question of law. But where admissible evidence has been led its assessment is entirely for the tribunal, in other words it is a question of fact.
2. If the tribunal approached the construction a statute on the erroneous basis that the statutory wording bears its ordinary meaning, it is a question of law. 3. If the Tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art, it is question of law. 4. If the Tribunal though correctly treating a statutory word or phrase as a legal term of art errs in elucidating the word or phrase, it is a question of law. 5. If the Tribunal errs on its conclusion (that is in applying the law to the facts) in a case where this process requires true skill of a trained lawyer, it is error of law. 6. If in a case where a conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the Tribunal reaches a conclusion which cannot reasonably be drawn from the facts, as found. In that event, the Superior Court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolution. The inferior Tribunal conclusion may be one of the possible resolutions yet it may be a conclusion which the Superior Court (had it been seized of the issue) would not have reached. Nevertheless, the inferior Tribunal does not err in law. The matter is one of degree and a superior Court with jurisdiction to correct only errors of law will not intervene.”
In the case of NWADIKE VS. IBEKWE (supra), this Court aptly postulated further on the principles regarding most particularly ground of law: (i) it is an error in law if the adjudicating Court or Tribunal took into account some wrong criteria in reaching its conclusion. See OKELLY VS. TRUST HOUSE FOILE PLC (1983) 3 All ER 468; (ii) Several issues that can be raised on legal interpretation of deeds, documents, term of arts, and inference drawn therefrom are grounds of law; (iii) Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground formed therefrom is a ground of law. See BENMAX VS. AUSTIN MOTOR C. LTD (1945) All ER 326; (iv) where a Court states the law in point wrongly, it commits an error of law; (v) Where the complaint is that there’s no evidence or no admissible evidence upon which a finding or decision was based, it is regarded as a ground of law; (vi) Where a Court considers a matter which is not before it, and relies upon it for the exercise of discretion thereof, the Court is deemed to have exercised same on wrong principles, therefore raising a question (issue) of law. See METAL CONSTRUCTION (WA) LTD VS. MIGLIORE, AJUWA VS. SPDC (2011) 12 SC (pt. iv) 118; OPUIYO VS OMONIWARI(supra).
Hence, against the backdrop of the foregoing far-reaching postulations, it is obvious that the instant appeal is grossly incompetent and it is hereby struck out by me.
The Respondents shall be entitled to costs assessed at N500,000.00 against the Appellants.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have carefully examined the seven grounds of appeal filed by the appellants as of right vide their Amended Notice of Appeal deemed filed on 2/11/21. I am in full agreement with my learned brother, Ibrahim Mohammed Musa Saulawa, JSC, that the said grounds are of facts and/or mixed law and facts, for which leave ought to have been obtained either from this Court or from the Court below, in compliance with Section 233(3) of the 1999 Constitution, as amended. Failure to seek leave where leave is required renders the Notice of Appeal incompetent and of no effect. See Nwagbara vs Jadcom Ltd (2021) LPELR-55329(SC) at 13 – 14 F – A; Shittu Vs Peugeot Automobile Nig. Ltd. (2018) LPELR-54377(SC) at 37 – 38 E – A; Metal Construction (WA) Ltd. Vs Migliore (1990) 1 NWLR (Pt. 126) 299.
This Court lacks jurisdiction to adjudicate in this appeal. It is accordingly struck out. I abide by the award of N500,000.00 costs against the appellants and in favour of the respondents.
EJEMBI EKO, J.S.C.: As my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC, found in the judgment just delivered, all the 7 original grounds, raising either issues of pure fact or mixed law and fact, are grossly incompetent. The notice of appeal at pages 249 – 254 of the records of appeal was filed as of right. The Appellants did not seek, and obtain, leave to appeal on the said 7 grounds of appeal as they should under Section 233(3) of the Constitution.
This ground of incompetence apart: the notice of appeal was audaciously filed as of right out of time. The decision appealed was handed down on 12th March, 2012. The notice of appeal, challenging the decision, was filed not less than 128 days thereafter. Section 27(2)(a) of the Supreme Court Act, 2004 enjoined the Appellants to appeal within 90 days (three months) from the date of the decision appealed.
I agree that the appeal, irredeemably incompetent and void ab initio, deserves to be, and is hereby, struck out with costs assessed at N500,000.00 ordered to be paid by the Appellants to the Respondents. I so order.
Appeal struck out.
MOHAMMED LAWAL GARBA, J.S.C.: A calm reading of the grounds contained on the Appellants’ Amended Notice of Appeal, deemed at the hearing of the appeal on the 2/11/2021, will clearly show that all of them involve questions or issues of mixed Law and facts, which, by virtue of the provisions of Section 233 (3) of the 1999 Constitution as (amended), require the prior leave of either the Court below or this Court. For the validity of any appeal brought or filed in this Court, the requirement of prior leave of Court to be obtained before bringing or filing an appeal against the decision of the Court of Appeal to this Court on grounds which involve or raise issues of mixed law and facts or facts alone to be determined by the Court, is a condition precedent for the validity and competence of the appeal, the absence of which will deprive the Court of the requisite Constitutional jurisdiction to entertain it for being incompetent.
This has been the position of the Law stated and restated by this Court in several decisions including Ojemen v. Momodu II (1983)3 SC, 173, Ogbechie v. Onochie (1986) 1 NWLR (Pt.70) 370 (cited in the lead judgment), Nalsa & Team Associates v. NNPC (1991) 10-11 SC, 83, (1991) 8 NWLR (Pt.212)652 (SC), Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 (SC), Ikeme v. Anakwe (2000) 8 NWLR (Pt.669) 484, Yaro v. Arewa Const. Ltd (2007) 6 SC (Pt.II) 149, Akinyemi v. Odu’a Investment Co. Ltd. (2012) 17 N WLR (Pt. 1329) 209 (SC), Olisa Imegwu vs Okolocha (13) 2-3 SC (Pt. 1) 72.
Apparently, in this appeal, both the original and the Amended Notice of Appeal were filed as of right and so without the requisite prior leave of Court obtained by the Appellants before filing them.
In the above premises and for the more detailed reasons set out in the lead judgment delivered by my learned brother I. M. M. Saulawa, JSC, which I read before now, I join in striking out the aforenamed Notices of Appeal for being incompetent.
I also abide by the order on costs.
TIJJANI ABUBAKAR, J.S.C.: This appeal stems from the judgment of the Court of Appeal Owerri Division delivered on the 12th day of March, 2012.
At the trial Court, the Respondents as Plaintiffs claimed declaration of title over a parcel of land at Akubor in Ohaji/Egbeme Oguta Local Government Area of Imo State, the Plaintiffs also claimed for damages for trespass and perpetual injunction.
The matter went to trial and various witnesses were called and several exhibits tendered at the conclusion of trial judgment was entered in favour of the Plaintiffs as Respondents. The Defendants appealed to the lower Court, judgment was again entered in favour of the Respondents, they further appealed to this Court against the concurrent findings.
My lord and brother, IBRAHIM SAULAWA JSC, granted me the privilege of reading in draft the comprehensive leading judgment prepared and rendered by him. I am in complete agreement and join in holding that the appeal is incompetent and deserves to be struck out, it is hereby struck out, and I endorse all consequential orders including the order on costs.
Appearances:
Chidozie Ogunji, with him, C. Okafor and C. Onyemachi For Appellant(s)
Obinna Amagarula with him, E. O. Onyeme and John B. Ofola For Respondent(s)
